The "problem" of judicial discretion in our federal courts is perennial and vexing. Appointed by the President and tenured for life, federal judges are an anomaly in a democratic system such as ours. Their license to choose among rules of law and select precedents for their holdings may be restrained by craft rules, the opinion of peers, and the constraints of the Federal Rules of Civil Procedure, but the same Rules allow the judge great latitude in managing the conduct of pre-trial and trial proceedings. Indeed, the modem federal judge has much of the discretion of the old English chancellor, who determined facts without juries, allowed parties the freedom to amend their pleas and introduce all sorts of evidence in the name of justice, and was capable of creating new remedies when required by novel circumstances. If there was no check upon such chancellor's discretion then, what guarantee have we now that judges will act responsibly toward the parties who submit their quarrels to the court and to the larger community whose members they serve?

History does not teach definitive lessons, but it does offer precedents on the problem of discretion. Two of our young nation's preeminent jurists, James Kent of New York and Joseph Story of Massachusetts, were sitting chancellors and wrote treatises on equity. They admitted that the discretion of chancellors was much controverted in their day, and in a marvelously subtle exchange, they wrestled with the source of the chancellor's authority to impose justice upon litigants. In their treatment of what appears at first glance to be a very small point-the concealment of material conditions of goods sold by one party to anotherthey demonstrated that chancellors must simultaneously empower and restrain their discretion by basing it upon conscience, a conscience informed by an explicit theory of moral knowledge. The means that they used, therefore, were rooted not in law (for they acted in the interstices of law; if they merely followed the law, then every valid contract in law would be enforceable in equity), or in equity itself (since, in many areas of contract in the late eighteenth and early nineteenth centuries, they were making the rules, not following them, as they themselves admitted), but in their appreciation of shared dicta of moral philosophy. Implicit in their view of discretion is the claim that chancellors can see behind the facade of formal pleading to gauge the moral intentions of the parties to a transaction, and that it is right and fitting to impose contemporary moral standards upon that transaction.